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B.C. Supreme Court to rule on Canada’s polygamy law

Courtesy of: The National Post:

VANCOUVER — The constitutionality of Canada’s polygamy law will be decided Wednesday by B.C. Supreme Court Chief Justice Robert Judge Bauman.

If the judge decides to strike down the polygamy law, it could have wide-ranging implications for pensions, health benefits and immigration policies, a Vancouver lawyer said Tuesday.

“Potentially there are a number of implications beyond whether or not polygamy is legal,” Ron Skolrood explained.

“It could affect survivor rights to pensions,” he said, adding it also could affect health benefits if a person claims more than one spouse and children from multiple marriages.

It could also have an impact on Canada’s immigration policies for family reunification, Mr. Skolrood said. Appeal already expected

Striking down the law also could significantly affect the way Canadians define the institution of marriage, he added, similar to the way the same-sex marriage reference case in 2004 resulted in a move away from the traditional definition of marriage.

No matter which way the judge rules, Mr. Skolrood said he expects the decision will be appealed to the B.C. Court of Appeal because of the high level of public interest in the outcome.

But if Judge Bauman strikes down the law as unconstitutional, the federal government could send a reference case directly to the Supreme Court of Canada, he added.

“It will be interesting to see how he deals with the evidence,” Mr. Skolrood said.

Religious freedom pitted against risk of harm to women, children

The judge heard 42 days of legal arguments during the unusual reference case, with opposing parties arguing the right to religious freedom and the risk of harm polygamy poses to women and children.

The governments of Canada and B.C. presented evidence of polygamy’s harms, arguing that the practice puts women and children at risk, thereby justifying limiting religious freedom as well as freedoms of association and expression.

The government positions were supported by anti-polygamy activists, advocates for women’s and children’s rights and the Christian Legal Fellowship.

The court appointed an “amicus curiae,” a Latin term meaning friend of the court, to argue in favour of striking down the polygamy law, which has made it illegal since 1892 to have more than one spouse.

Those favouring striking down the law included the Fundamentalist Church of Jesus Christ of Latter Day Saints, polyamorists and civil libertarians, who argued that Section 293 of the Criminal Code is overly broad, criminalizing consenting adults whose conjugal relationships are benign and even beneficial for all involved.

“By intruding into adults’ decisions about the form of conjugal relationship that best meets their personal needs and aspirations, the law overextends the reach of the criminal law into individuals’ private lives, intruding into their most private relationships,” the B.C. Civil Liberties Association argued.

The B.C. attorney-general’s lawyers also filed a list of 31 under-aged girls with birthdates and marriage dates, along with the names of the parents and relatives who trafficked them between Canada and the United States to marry FLDS elders.

On the central issue in the case — whether the practice of polygamy involves the potential for abuse of women and children in polygamous communities — the court heard evidence from individuals who have had both positive and negative experiences with polygamous relationships.

The reference questions were put before the court by the provincial attorney-general after a stay of proceedings in the polygamy prosecutions of Winston Blackmore and James Oler of the Bountiful community in B.C.

The two men were charged in 2009 with practising polygamy at Bountiful.

A judge stayed the charges after concluding the selective way the province chose the prosecutors violated the men’s rights, prompting the government to launch a constitutional reference case.

Bountiful residents follow the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS. Polygamy is practised as a tenet of the faith but the mainstream Mormon church renounced multiple marriages more than 100 years ago.

The provincial government refereed the case to the court to answer two questions:

• Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

• What are the necessary elements of the offence in section 293 of the Criminal Code of Canada? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?